065-NLR-NLR-V-64-S.-ESWARALINGAM-Appellant-and-N.-SIVAGNANASUNDARAM-District-Judge-Responden.pdf
396
SANSONI. J.—E8waralingam v. Sivagnanasundaram
1962Present: Sansoni, J.
S. ES WAR ALINGAM, Appellant, and N. SIVAGNANASUNDARAM'
(District Judge), Respondent
S. C. 20 of 1962—Application under Section 42 of the CourtsOrdinance for an Order in the nature of Writ of Prohibitionand Mandamus on N., Sivagnanasundaram, Esquire,
District Judge of Point Pedro
Civil ‘procedure,—Money lying in Court—Order of payment made by Court per incriam—Inherent power of Court to lake action to prevent any injustice—Failure to obey summons—Power of Court to order attachment and bail—Civil Procedure Code, ss. 137, 138, ldl, 210, 839.
A Judgo is entitled to notice a party to appear before him in order that aninquiry might be hold into any matter pending beforo him. •
An order of payment of a certain sum of money deposited in Court by the3rd defendant was made by Court per incuriam in favour of tbe 1st and 2nddefendants. The 3rd defendant then applied to the Court to order the 1stand 2nd defendants to bring back the money into Court.
Held, that it was the duty of the Court to summon the 1st and 2nd defendantsand to require them to deposit in Court the money which had been paid outto them, until such time as the rights of the parties could be ascertained. Iftho 1st and 2nd defendants failed to obey the summons, the Court was entitledto enforce obedience by issuing an attachment against them and to orderthem, under section 138 of the Civil Procedure Code, to give bail to ensuretheir attendance.
Application for wits of prohibition and mandamus against tho ■District Judge, Point Pedro.
Nimal Setmnayake for Petitioner.
H. L. de Silva, Crown Counsel, for Respondent.
Cur. adv. vult.
July 30, 1962. Sansoni, J.—
This is an application for Writs of Prohibition and Mandamus by thePetitioner (1st Defendant in D. C. Point Pedro Case No. 5279) againstthe Respondent, who is the District Judge of Point Pedro. It arisesout of the following circumstances. Case No. 5279 is a pre-emptionaction filed by one Annapillai against the Petitioner, his wife (2ndDefendant), and one Yelan Kanapathy (3rd Defendant) impugning adeed of transfer executed by the 2nd Defendant in favour of the 3rdDefendant. As part consideration for that transfer, the 3rd Defendanthad executed a Mortgage Bond in favour of the 2nd Defendant in asum of Rs. 3,000.
SANSONI, J.—Eatoaralingam v. Sivagnanasundaram
397
After trial the District Judge gave judgment for the plaintiff anddecreed that the plaintiff should 4eP°sit a sum °f Rs- 3,500 in Courtas | the value of the land which he was seeking to pre-empt, and thatSum was accordingly deposited. Subsequently, the 1st and 2nd Defend-ants moved for an order of payment in their favour for the sum ofRs. 3,500 to be applied in part satisfaction of the principal and interest■due on the Mortgage Bond, and an order of payment was issued to themfor that sum on 15th November 1961.
1 On 16th December 1961 the widow and children of the 3rd Defendantwho had, meanwhile, been substituted in place of the deceased 3rdDefendant, applied to the Court to order the 1st and 2nd Defendantsto bring back into Court the sum of Rs. 3,500 drawn by them. TheCourt ordered notice to issue on all three Defendants and the Plaintiff.The notice required the 1st and 2nd Defendants (1) to bring into Courtthe sum of Rs. 3,500 as the payment to them had been made per incuriam,and (2) to appear in person on the 22nd December 1961 in respect ofthe application of the substituted Defendants.
Notice was admittedly served on the 1st and 2nd Defendants, butthey did not appear in Court on the notice returnable day or depositthe money. The Judge on that day thought that they should be broughtinto Court on attachment to show cause why they should not bringinto Court the money drawn by them. An attachment was accordinglyissued. On the 23rd December the 1st Defendant appeared in Courtin Fiscal’s Custody. The Judge explained to him (1) that the paymentorder had been issued to him by error, (2) that it should not have beenissued as there was no decree on the Mortgage Bond in favour of him andpfciis wife, (3) that he and his wife should bring back the money into Court,’arid (4) that the money will not be returned to any party without dueconsideration of their rights.
The 1st Defendant explained that he had been advised that the moneycould be drawn by way of a motion and that is how he came to withdrawit. The Judge then ordered the 1st Defendant to give security in Rs. 3,500in cash to appear on 26th December. As he did not furnish securityhe was remanded to Fiscal’s custody.
On 30th December there is a journal entry which reads : “ The 1stand 2nd Defendants now wish'to bring into Court the sum of Rs. 3,500vide para 3 of proceedings dated 23.12.61. (1) Issue D. N. forRs. 3,500
(2) Enlarge him on furnishingpersonal bail in a sumofRs. 500.” ’
Further entries show that this sum of Rs. 3,500 was actually depositedwithin the next day or two. Before any further proceedings could takeplace this application was filed in this Court.
Mr. Senanayake for the petitioner submitted that the Judge had noright to insist on the attendance in Court of the 1st and 2nd Defendants ;
and that, in any event, he had no right to issue the order of attachment
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398SANSONI, J.—Eswaralingam v. Sivagnanasundarain
or to order security to be furnished for their appearance. Crown Counselreferred to Sections 137 and 138 o£ the Civil Procedure Code and herelied on the judgment in Narayan Chetty v. Jusey Silva 1. He alsourged that since the money had been paid, out to the 1st and 2nd Defend-ants on an ex-parte application made by them, which the Judge sub-sequently thought had been allowed per incuriam, it was open to theJudge under his inherent powers to inquire into the matter, and for thatpurpose to summon the 1st and 2nd Defendants and any other personswhose presence the Judge thought necessary in order to‘inquire into thematter.
-In my view there was a clear case for inquiry. Money had been paidout, as the Judge thought per incuriam, which was claimed by; thesubstituted Defendants as due to them. It was the duty of the Judgeto inquire into their complaint and for that purpose to summon the 1stand 2nd Defendants, and to require them- to deposit in Court the moneywhich had been paid out to them, until such time as the rights of theparties could be ascertained. If the Judge failed to take steps to Ithisend, a grave injustice might have been done to the substituted Defendants.It was undoubtedly the duty of the Judge to take action to preventany injustice, especially where such injustice arose from the action of theJudge himself.
In the case of Narayan Chetty v. Jusey Silva, Wendt J. said : “ TheCourt has an inherent right to summon a party before it, and, if thatsummons be disregarded without lawful excuse, to enforce obedienceby warrant. ….1 would add that the defendant’s proctor ought,
at the very least in courtesy to the Court, to have explained the non-appearance either of himself or of his client, and given the Courtj£Srtopportunity, if so advised, to recall the order for the warrant befortf/hnpresented an appeal to this Court ”. Middleton J., who agreed, thoUSrhtJ•that Sections 137 and 141 of the Code justified the issue of a warrantwhen a party who had been summoned to appear before the Court failedto appear. In that case the party in default was the Defendant whohad been noticed under Section 219 of the Code. The Court then ordereda warrant to be issued for his arrest, and an appeal was filed againstthat order.
Mr. Senanayake submitted that this case was no authority, becauseunder Section 219 (2) there is express provision for the issue of a warranton a debtor who has been summoned to appear. I cannot accept thisargument, because it overlooks the provisions of Section 219 as it stoodwhen this judgment -was given. Sub-section (2) to Section 219 is a lateraddition. It was not originally in the Code, and it had not been enactedin 1903 when this case Avas decided, nor is it to be found even in the 1907edition of the Enactments. I cannot say when it was added, for thereis no marginal note of the date in the neAV edition of the LegislativeEnactments. I see no reason to limit the application of the dicta inthat case.
1 {1903) 8 N.L.R. 162.
SANSONT, J.—Eawaralingam v. Sivagnanasundaram399
Further authority in support of the right of a Judge to notice a partyto appear before him, in order that an inquiry might be held into anymatter pending before him, will be found in Edirisinghe v. District Judgeof Matara K There the District Judge had issued notice on a party,against whom a complaint of obstruction was made by a Commissionerappointed to conduct a sale in a partition action, to appear in Court.
A similar application to the present one was then made by the partyto this Court, on the ground that the Judge had no jurisdiction to inquireinto the alleged obstruction, or to make an order requiring the. partyto furnish bail for his future appearance in Court. • Basnayake J. heldthat the Judge was entitled to ascertain the true facts by inquiry inorder to decide what action, if any, he should take in respect of thealleged obstruction. He also referred to section 839 of the Code, whichsaved the inherent powers of the Court. He accordingly refused theapplication for the writ of prohibition.
Similarly, in this case I would hold that the Judge was entitled tohold an inquiry into the complaint of the substituted Defendants,and for that purpose to notice the list and 2nd Defendants to appear, .as they were the persons who had drawn out the money which thesubstituted Defendants said had been wrongly drawn out. When theyfailed to obey the notice, the Judge was entitled to enforce obedienceto it by issuing an attachment against them.
• The next question that arises is whether he was entitled to order thepetitioner to give bail, when he was arrested and produced before theCourt to ensure his attendance on 26th December. I think Section 138of the ;Code enables the Judge to do this, for it provides that a personiarrested and brought before the Court for non-compliance with asisi&mons may be required to.give bail or other security for his appearance,jac^Swhen such bail or security is given, he may be released. Basnayake J.ansche case I have just cited said that he could find no authority for theyrder made in that case by the District Judge that bail should be furnished.Perhaps, if his attention had been drawn to Section 138, he might havetaken a different view. I therefore see nothing wrong in the ordersmade by the learned District Judge in the present case with regard tothe issue of notices, attachments, and the orders to furnish security."
There is one other matter which Mr. Senanayake referred to, andthat is the journal entry of 30th December 1961 referring to the depositof Us. 3,500. He submitted that this sum was deposited solely in orderto obtain the release of the 1st Defendant-Petitioner, and not as a refundof the money withdrawn from Court. This is a matter which the 1stand 2nd Defendants should raise in the lower Court with notice' to theother parties. I reserve this right to them, andJ direct that the inquiryinto this matter be held by another District Judge.
For the* reasons I have given, 1 refuse the application for writs ofprohibition and mandamus. The parties will bear their own costs:
Application refused.
1(1949) 51 N.L.'A. 549.